Friday, March 06, 2015

An Overbroad View of Complicity

by Sherry F. Colb

In my Verdict column for this week, I explore the case of a pediatrician in Michigan who reportedly refused to meet with a six-day old patient, because the baby's parents are lesbians and this fact made the doctor uncomfortable. Though Michigan apparently permits discrimination on the basis of sexual orientation, the doctor appeared to have nonetheless been invoking a common "exception" to anti-discrimination principles, for situations in which adhering to anti-discrimination norms would violate the would-be discriminator's religious or conscience-based convictions. In my column, I discuss the inappropriate breadth of a religious/conscience exception that would apply where adhering to the anti-discrimination principle would in no way implicate the practitioner in any religiously prohibited conduct. In the case in question, it is hard to imagine any religious rule that might prohibit a doctor from treating an infant whose parents happen to be a same-sex couple.

I suggest in my column that what may actually be going on is that for religious or other reasons, the doctor in the case felt uncomfortable around the same-sex couple and therefore decided that she would prefer not to have to work with the family (and correspondingly have to interact with the couple). Religion, then, may have become an excuse for avoiding uncomfortable interactions with people with whom she would prefer not to interact.

I would like to suggest here that even though I reject the doctor's homophobia and her rather bizarre decision not to treat a lesbian couple's baby, I can understand how someone holding a particular moral principle might feel inclined to avoid people who violate that moral principle. In explaining my understanding, though, I want to highlight why I nonetheless regard it as dangerous and undesirable to act on the inclination in question.

As many regular readers of this blog know by now, I am an ethical vegan. This means that for ethical reasons, I avoid consuming the products of animal exploitation, including the lacteal secretions of cows and other mammals (dairy), the ovulatory secretions of birds (eggs), and the flesh of the same and other sentient beings (meat, poultry, fish, etc.). Because my commitment to veganism is ethical (rather than, say, allergy-based or taste-driven) in nature, my wish is that everyone in the world decides to become vegan as well and thereby spares billions of land and sea animals the torture and slaughter that they currently endure to service people's demand for all manner of animal products. Though ethical veganism is, in important ways, distinct from religion, there is a similarity in the role that conscience plays in determining the sorts of decisions that one makes on a daily basis.

To provide an analogy to a doctor who refuses to perform an abortion, I would be very resistant to being in charge of distributing the flesh of baby chickens (typically 7 weeks old at slaughter) to a group of people dining at my school. Similarly, I would be opposed to making an announcement to my students encouraging them to participate in a program in which they would prepare packages of slaughtered flesh and secretions for poor people to consume. (I prefer to donate to A Well Fed World, which recognizes the links between compassion for poor people and compassion for animals and which also takes into account the role of animal agriculture in exacerbating global poverty and hunger). By opting out in these situations, I would see myself as avoiding complicity in behavior that I consider unethical.

Where the pediatrician in Michigan takes things much further than I do is in leaving the whole matter of complicity behind and simply opting out of interactions that might be uncomfortable, if the discomfort is a result of her religious or moral convictions. By analogy, I might feel uncomfortable when people around me choose to consume the products of what I know to be unfathomable cruelty to animals, whether for breakfast, lunch, or dinner. Yet I do not believe I have a legitimate right to stop attending all work functions at which some of the people will be consuming non-vegan food. To do so would represent shirking on my part, given that virtually every event at which faculty are expected to attend, and at which food is provided, serves non-vegan food (along with generously serving vegan options for me and other vegans in our community). So long as no one is preparing non-vegan food for me, and so long as I am not personally consuming or serving non-vegan food, I do not think one can, as a practical matter, be part of a working community and simultaneously characterize as complicity one's attendance at an event at which other people are consuming non-vegan food.

And yet the doctor in the Michigan case arguably takes things even one step further than that. She is not asked to be present, for instance, while same-sex couples engage in intimate acts that she views as religiously prohibited. All she is expected to do is to treat her patient, a 6-day-old infant, and converse with the baby's lesbian parents about the baby's well-being and any medicines or other treatments that the baby might need. The analogous behavior in my case would be if I were to refuse to interact with my non-vegan colleagues even during times at which no one is consuming any non-vegan products, simply because it makes me uncomfortable to know that at other times, my colleagues consume non-vegan products. In addition to being completely anti-social and counterproductive to my thriving here at my job, such an approach would be utterly unrealistic. I simply could not do any part of my job if I were to insist on interacting only with other vegans.

This last aspect of the problem exposes exactly what is so wrong about the Michigan pediatrician's decision not to treat the child of a lesbian couple. It is the fact that--barring a law prohibiting such discrimination--this doctor can do exactly what she did without necessarily jeopardizing her medical practice or her ability to thrive in her work. This is because she is targeting a minority population and can therefore still find plenty of people with whom to interact (and plenty of patients to treat) from the majority, even as she completely shuns a minority group. The fact that she can do this helps disguise just how extreme her decision was, an extremity that is patently obvious when I analogize it to what I would have to do as an ethical vegan to be behaving comparably.

In reality, I would not want to terminate all of my interactions with non-vegans, even if it were not as plainly impractical and counterproductive to do so as it actually would be. This is because I too was a non-vegan just nine years ago, and I am capable of appreciating the gifts that people have to bestow, even if they have not (yet) decided to leave the products of animal harm behind them. I believe that my life is enriched by interacting with people of all different types, even if many of them do not see eye to eye with me about every fundamental moral feature of our lives. I would hope that people like the Michigan pediatrician could appreciate this too and could understand that sometimes, uncomfortable conversations and interactions with people who differ significantly from ourselves can yield tremendous benefits and insights and make all of us grow as individuals. When a pediatrician chooses instead to send away a lesbian couple and their 6-day-old baby, she accordingly does more than just deprive a family of her care; she deprives herself as well of the wisdom and insight that they would undoubtedly have been able to offer her. It was her loss as much as it was theirs.

The contrast between Ms. Colb’s reasoned, tolerant and understanding position with respect to non-vegans and the reprehensible position of a reprehensible pediatric physician who refused to take on a patient because the parents were gay could not be sharper. The physician probably considers herself a religious person, but if so that is the house of worship of bigotry, prejudice and hatred. Exactly how a person with such beliefs could choose the medical profession, a profession which should attract the caring, compassionate and considerate is beyond my comprehension.

Ms. Colb is to be commended for writing about this in an objective and professional manner. That is not something I or presumably many others could do.

Presumably there were other doctors to whom the lesbian couple could and did turn. But if there were any doubt about that wouldn't the doctor have been under a moral and perhaps also a medical-ethics obligation to put religious objections aside and treat the baby. (Some what similarly, would it be morally acceptable for vegan to refuse to help hand out milk supplies to starving infants in an emergency situation where failing to do so would risk their lives?)

I agree the doctor behaved poorly. I also share your incredulity that there is a religious rule against treating the infant. However, it is not for us to say what any religion believes nor whether any individual is following an established religious rule, as long as she sincerely believes she is.

Complicity is a harder issue as we have our ideas about factual complicity while religious individuals may have different ideas about what qualifies as spiritual complicity. There seems to be a tension there.

If you refused to deal with non-vegans, it seems likely would be fired. But the fact that your discrimination would not be based in religious faith does seem to negate a religious liberty claim.

In terms of fairness and civility, I agree with you.

On the other hand, there is the reality that there are many other doctors available and willing - indeed, a different doctor met the parents when they arrived. The notion that the small number of doctors with such objections must be forced to submit or driven out of the profession seems at odds with a compelling interest (aside from finding their view objectionable). If there was any kind of emergency situation, I agree any objection should be overridden. The fact that the doctor's refusal is trumpeted around the world on the internet is no small matter, either.

I think a decent argument could be made that a doctor could permissibly refuse to tend to the (non-emergency) medical needs of a white supremacist or vicious anti-semite. (Doctors are hard, though, because they may have affirmative duties to tend to all, duties that come with the job.) If this is so, then we need a principle that distinguishes between permissible refusal to tend and impermissible refusal to tend.

I am drawn to the view that we are not required to take care of people whose views are viciously immoral and reprehensible. If this is right, then the crucial point here is that there is absolutely nothing immoral about sexual relations between consenting adults, whether those adults are of the same sex or of different sexes. I don't really care what religions tell us about sexual relations. If they say that sexual relations between adults that harm no one and are fully consented to are immoral, then they're wrong, period. Sinful, maybe, but not wrong.

Licensed people have duties as do those serve the public. This includes to moral reprobates.

But, someone suggested otherwise. In effect, five stores, one racist owner. No "compelling interest" apparently to stop some racist (a broad right to conscience is honored by this blog, so it need be purely religious in nature) coffee seller to not serve the public if even for doctors, it would take an emergency situation.

Licenses provided by the state and public businesses imply a "compelling interest" -- the state not taking part in wrongful discrimination.

The attempts to defend Dr. Roi’s intolerance on the basis of religious tolerance have no basis. The fact that there were other doctors to treat the baby or that Dr. Roi’s beliefs are ‘sincerely held’ is irrelevant. This is not a case of Dr. Roi being denied her right to practice her religion as she sees fit. She is free to worship as she pleases and live her life as she pleases. It is case of her bigotry, her hatred and her prejudice being imposed on others. Think of how strong and deep those feelings must be for a pediatrician to refrain from accepting a baby as a patient.

Dr. Roi received her medical degree from Michigan State University, a public college supported in part by the taxpayers of the state of Michigan. Apparently she had no difficulty with taxpayers who were gay or lesbian paying for part of her education. And almost certainly she hid her position that she would not treat children of a gay and lesbian couple from the officials who granted her admission to MSU and from professors who taught her.

And this is not a strictly legal issue. Dr. Roi may well have the legal right to engage in her conduct. But that does not give her the moral right. Just because someone can do something does not mean they should do something or that the something is the right thing to do.

Although the policy is not yet fully implemented (but it will be some day), it is important to note that on this the 50th anniversary of Selma we as a people have decided and determined that there is no place for discrimination in public life and commerce. There are however nations in the Middle East and Africa where Dr. Roi’s position would be not only tolerated but welcomed. I sincerely (and therefore it’s ok because it is a sincere belief) hope that Dr. Roi will relocate to one of those countries. If she did move I do not know if the country she moves to would be better off, but certainly this one would be.

"(a broad right to conscience is honored by this blog, so it need [not] be purely religious in nature)"

I concede the apparent unfairness illustrated by certain analogies. And I share a belief in a broad right of conscientious freedom.

However, there is a constitutionally enshrined right of religious freedom. It is on that basis, as well as the more general respect for conscious, that I would object to legislation seeking to quash such conscientious objections.

Cognizant that this is a legal blog, suggesting there is need for a "compelling interest" to stop racial discrimination in certain contexts clouds the discussion, when there is often need of a "compelling interest" when it comes to laws that impinge upon religious freedom.

"Licenses provided by the state and public businesses imply a 'compelling interest' -- the state not taking part in wrongful discrimination."

A compelling interest is not necessary for state licensing, nor would the grant of a state license permit a state to negate constitutional rights of individuals receiving a license.

The matter of complicity is more difficult - ie whether certain behavior is dictated by the stated beliefs of an objector. That is an issue I am very interested in as a legal matter.

David Ricardo objects this situation has everything to do with morality. He seems to misunderstand the significance of sincerely held beliefs under the law, or perhaps wanted to make a rhetorical point. I'm not sure what he means about the doctor not having a "moral right" even if she has the legal right.

I've already expressed my view that I don't think the doctor should have declined her services to the infant. And if we were able to legislate our morals/ethics so as to suppress those of others, he would have some great points. But again, I support broad freedom of conscience. I have certainly not objected to expressions of outrage against the doctor.

But ultimately, I do support a free and pluralistic society. Would it be as objectionable for a vegan doctor to refuse to provide care to the child of meat-eating parents based on a conscientious objection? Maybe it's not civil or wise, but I would be okay with the doctor making that choice - and it's not because I am a vegan.

It seems to me that I should have the right not to sell merchandise to a vicious racist or anti-semite. The only thing I worry about is the objection that it might be difficult to tell in many situations whether the person who is seeking to purchase a good or a service is a moral monster. And if we leave it up to ordinary folks to decide who is a moral monster and who isn't, then the result will be that gay parents aren't served, and so on. So I can see why the moral principle here would not support a general *policy* of not serving moral monsters.

Even so, the essential point here, it seems to me, is that there is absolutely no justification for refusing to serve someone who is quite obviously not engaged in immoral behavior. It doesn't matter whether the doctor at issue here *believes* that gay couples are doing immoral things. We as a society have no good reason to accommodate ridiculously stupid reasons that people have for refusing to serve others. Among those reasons are the religious reasons proposed by some to justify their refusal to serve gay couples (or their children). We wouldn't stand for it if a doctor refused to tend to the needs of an interracial couple on the grounds that interracial sex is immoral. Nor in this case should we stand for it if a doctor refuses to tend to the needs of a gay couple (or their children) on the grounds that gay sex is immoral. To dignify this sort of bigotry by slotting it under the heading of religious freedom is beyond contempt.

I think those that disagree with my position raise legitimate points, but ultimately those points are not valid. Let me set forth three reasons why.

First, one has to distinguish between public actions and private actions. There is no disagreement that any individual may hold any beliefs in their private lives. They have the absolute freedom to be anti-gay, to be anti-Semitic, to detest people of color, to hate and despise to their hearts content. And they have every right to attend religious services where these beliefs and practices are supported and encouraged.

But we as a nation have decided and are on the path to full implementation of the principle that when one enters the public arena, when one engages in commerce, that one does not have the right to take actions that enact those views. Regardless of how much a person sincerely believes that inter-racial marriage violates their religion, they do not have the legal right to refuse service to an inter-racial couple. Regardless of how much they may believe that the Jewish people are the spawn of Satan they do not have the legal right to deny a Jewish person accommodations in their hotel. And ultimately they will not have the legal right to discriminate on the basis of sexual orientation. I suggest those who disagree should go back to the history books and look at the position of southern churches pre-civil rights era. They will find that hundreds if not thousands of congregations and their ministers held the position that separation of the races was God’s plan, that their religion embraced segregation and that de jure segregation was implementing God’s will and therefore not only justified but required.

Second, while an individual has the right to practice their own religion as they see fit, they do not have the moral right and should not have the legal right to impose their religious beliefs on others. And that is exactly what those who would use coercive power such as denying services or enacting laws that allow discrimination based on religious beliefs are trying to do. Again as a nation we are moving in the direction of preventing this but this journey is more difficult because there is a large number of groups who would do just that and want government to protect and empower them in that mission.

Third, the idea that we should make exceptions for people with ‘sincerely held beliefs’ or who truly believe they have a moral right to discriminate or force their religion on others is simply not a workable system. Since there is not way to determine or even define ‘sincerity’ adopting such a position simply allows any individual to engage in any discrimination that he or she sees fit to do.

So if someone wants to hold repugnant positions we all support their right to do so. But in a just society they have no right to impose or act on those positions in public commerce and our legal system should prevent them from doing so (and it does in some but not all cases). Allowing individuals to ‘opt out’ of anti-discriminatory behavior in the public markets is a step, maybe a small step but a step indeed, towards ending all legal protections because that stands for the principle that individual prejudice and bigotry even if it is grounded in so called ‘religious beliefs’ trumps compassion and decency in public life.

"It seems to me that I should have the right not to sell merchandise to a vicious racist or anti-semite."

I think the problem of line drawing makes this suggestion a bit academic. And, we can put aside private sales.

Not sure though that in a public business, such as someone running a diner or supermarket, where this "right" comes in. We have free expression in this country. Putting aside vagueness concerns, yes, hateful people should be able to freely shop at public accommodations.

I'm not really clear on what Joseph Simmons is saying. The "compelling interest" is to deal with various types of illicit discrimination. Free exercise is not absolute. This also is not private action or even a matter of a private sale necessarily.

When the state is involved, including public accommodations and licensing, this provides a justification even if the discrimination is religious or conscientious in nature. David Ricardo spells out details here.

When stores did not sell to blacks, it was in part motivated by religious and/or conscientious beliefs. The judge that sentenced the Lovings for miscegenation cited holy law that required separation.

Bottom line, we live in a society with a public economic sphere "clothed in the public interest" that justifies, on compelling grounds, various regulations including anti-discrimination laws. Religious exercise is a fundamental right, but is not absolute.

I see so much confusion being sown and an ignorance of the fact that others are entitled to hold and act according to different moral/religious beliefs - even about homosexuality. Certainly such freedom is not without limit, but it is being claimed in the comments that such a belief cannot be tolerated by society at all. (What you decline to tolerate as an individual is obviously your choice; I'm more concerned about the law.)

We might consider the case of the Catholic church: an organization which preaches against homosexuality, discriminates against those it employs (a broadly defined class of ministerial employees), and carries its message into the schools and universities, supplanting a secular public education.

On the face of the comments here, such activity should not be tolerated.

Samuel Rickless appears disturbed by the notion of permitting "ordinary folks to decide who is a moral monster and who isn't." Yet that is the essence of freedom - for "ordinary folks" (what other kind is there?) to think and act according to their own beliefs. Thus one can assert the doctor to be such a monster, to yell it across the internet. I do hope that the discussion here is more than just registering one's own particular outrage.

Joe said: I'm not really clear on what Joseph Simmons is saying. The 'compelling interest' is to deal with various types of illicit discrimination. Free exercise is not absolute. This also is not private action or even a matter of a private sale necessarily.

The pretense in the comments, without much argument, is that there is not a valid claim of religious freedom - despite the doctor claiming so. A compelling interest may or may not be required, but it is a helpful starting place when speaking of limiting religious freedom. Labelling a particular kind of discrimination "illicit" does not negate a religious claim.

Despite David Ricardo's attempts to draw a clear line between private and "public" actions ("when one engages in commerce, that one does not have the right to take actions that enact those views"), we know this is not true. Hobby Lobby was the biggest and most recent illustration of this fact. There is a real debate here that is being ellided in favor of moral and aspirational statements.

It has been suggested that the laws and commercial activity which discriminated against blacks had some religious motivation. I don't know whether the courts considered religious freedom in that context. But based on the pervasive discrimination against blacks, let alone historical roots that had little to no credible connection to religion, we can see a kind of compelling interest not present in the doctor's refusal to care for the infant.

I don't see caring for the infant as an act of complicity in the moral sins perceived by the doctor. I'm honestly not sure if my view of complicity stands up against a religious-based claim of complicity under the law. Different religious and philosophical views of complicity are possible.

Could a licensed therapist who does marriage counseling turn away a gay couple if her religious beliefs consider the relationship sinful?

It is well established in our law that religious freedom does extend into the public square, including economic activity. I've already made clear that I think the doctor is misguided, but that doesn't conclude the matter.

For those who wonder about the role of religion in bigotry and discrimination against African Americans there is this, one example from a body of thousands.

“There are three major colors in the world today, the WHITE, the YELLOW, and the BLACK. I believe, with ail of my heart and with all of my soul, that all of them should have equal rights; but, neighbors, nowhere in the bounds of God's Word can you find where God ever puts His approval upon intermarriage. NOW PUT THAT DOWN AND DON'T EVER FORGET IT. I can prove this beyond a shadow of doubt out of the Word of God. These Samaritans were a half-breed. They were a mixture of the Jew and Samaritan, and as a result of it they had the curse of God hanging upon their heads. If you will look into the Old Testament, you will find that God did not permit the half-breeds to come into His temple or into His court. When a man becomes a half-breed he loses all of his race pride. I BELIEVE THAT YOU NEGROES WHO ARE LISTENING TO ME OUGHT TO BE PROUD THAT YOU ARE A NEGRO. You ought to be as anxious to preserve your race as the white man is to preserve his, or the yellow man to preserve his, because when the race is not preserved WE LOSE OUR IDENTITY

. . . .

If America turns from God's answer, and fails to keep her RACES PURE by SEGREGATION, there will be neither WHITE nor NEGRO race remaining. But, SHE WILL TURN INTO A NEGROID NATION OF PEOPLE!”

http://scipio.uark.edu/cdm/ref/collection/Civilrights/id/1588

Kinda leaves a person wanting to take a long shower to cleanse the body and soul doesn’t it.

So, sorry those of you who think religious beliefs can justify bigotry and prejudice and hatred in the public arena. You can hold those thoughts, in fact our legal system guarantees you the right to believe that. But if you believe you have the right to insert those beliefs into public life you have to live with the above which if successful would have prohibited inter-racial marriage and required segregation in public establishments. You have to align yourselves with the men and women who believe those quotes and not with the men and women who marched at Selma. You have to believe that the proof that inter-racial marriage violates God’s will is that the Samaritan had the curse of God upon them.

And you have to believe that your sincere religious beliefs are violated by allowing inter-racial marriage and by laws forbidding segregation in public facilities and public activities and by extension that discrimination against gays or Jews or anyone with whom you disagree is doing God’s work. And you have to believe that therefore laws can be enacted to prohibit inter-racial marriage and enforce segregation because allowing that kind of marriage and allowing integration violates your freedom of religion. You don’t get to pick and choose which religious beliefs can be valid to counter anti-discrimination. It’s all or none. Can you do that?

The pretense in the comments, without much argument is that there is not a valid claim of religious freedom - despite the doctor claiming so.

Argument was provided to explain why the claim is not valid. You might not agree with the argument, but it was made. The "pretense" is yours.

A compelling interest may or may not be required

Religious freedom is a fundamental right, so if free exercise is blocked, there should be a compelling interest. How we phrase this when the state is involved or coercion of others etc. might complicate things.

but it is a helpful starting place when speaking of limiting religious freedom.

Fine. I took for granted that a compelling interest was involved & David Ricardo appears to have or at least argued that once you coerce others etc., your rights stop, but that to me amounts to about the same thing. Stopping the invasion of fundamental rights of others is a compelling interest too.

Labelling a particular kind of discrimination "illicit" does not negate a religious claim.

First, I noted the involvement of the public and state (licensing, public accommodations) here. But, why not? The word "illicit" means it isn't allowed. I have to explain why it is so, clearly. But, why would religious claims hold up if it involves something "illicit"?

An assertion (it has no citation) that racism "had little to no credible connection to religion" is also made. History shows this false. I at least provided an example (the statement of the Loving judge). Many more can be provided. Racists even today speak of "natural law" or "God's law" to justify their actions.

Finally, Hobby Lobby is cited. I think the case was wrongly decided. So, I don't really see it as a refutation of the line between public and private. No line tends to be crystal clear, but as a general principle, not letting people deny service to unveiled women at a diner on religious grounds is an acceptable one.

David Ricardo has explained how a consistent view of allowing conscience and religious belief to override anti-discrimination laws in licensing and public accommodations. What will happen, honestly, will be selective respect. We see this in the abortion context. SOME moral views there are favored by Hyde Amendments.

The net respect here of freedom of belief is unclear. Hobby Lobby again. Employees directly use compensation to make moral decisions. Here, they were burdened by a major employer whose involvement was more indirect. Net loss of freedom of conscience in my view.